If there is one silver lining to the deportation flight that left for Jamaica yesterday, it was the fact that not everyone was on board: the Court of Appeal prevented the deportation of some of those due to be deported because they hadn’t been given access to legal advice.
The court made the order because some detainees had been unable to contact their lawyers by phone for much of the month before the flight, due to a problem with phone networks in the two big detention centres at Heathrow. But the lack of access to legal advice goes far beyond that denied to these detainees. In fact, the detention system has such serious failings that I would argue no detainee can be assumed to have adequate access to justice.
Legal advice in immigration detention is provided through the Detention Duty Advice scheme, funded by Legal Aid. Until September 2018, there were nine legal advice providers with contracts to work in detention centres across England (Scotland has a different system) – usually around three in each centre. Each had a week on the rota, offering up to 40 half-hour slots in the week, using a telephone interpreter.
That system had many shortcomings – not least the very short appointments – but primarily the suitability of the legal advice providers themselves. In September 2018, contracts were given to more than 70 different providers. Many are small, without the capacity to advise 40 people in a week, not to mention make applications for bail, lodge judicial reviews or take on appeals for those eligible for legal aid. Most have no experience of detention work – the often complex cases of people who might have spent most of their lives in the UK – and with only around three weeks a year each on the rota, little opportunity to develop it either.
Cheered on by hundreds of protesters, brilliant, committed immigration lawyers worked hard to uphold their client’s rights, no matter how complex their case
Worst of all, there’s no accountability for legal advice providers that fail their duty to their clients. Last week, the charity Bail for Immigration Detainees (BID) published its latest six-monthly survey of detainees. It found that most appointments lasted 20 minutes or less, and that many representatives failed to make bail applications for their clients, for apparently inadequate reasons. BID also found that most detainees in the survey waited over a week to see an adviser on the rota. This often makes their services useless, as the Home Office offers only a 72-hour notice period before removal – one reason why challenges to deportation so often happen at the last minute.
Very few of these failings show up on a Legal Aid Agency audit (perhaps because such audits don’t examine the quality of legal advice given); nor does it appear that any provider has lost its contract as a result of poor performance.
Given the systemic failings in the legal advice given to immigration detainees, it is not surprising that indicators of trafficking are sometimes missed. Both David Lammy MP and the charity Detention Action believe that some of the deportees had been groomed into county lines gangs, which led to the conviction that brought about the deportation. The numerous potentially trafficked people in immigration detention are unable to access the legal advice they need because the system doesn’t work.
How, then, might the system work better? Many have called for detention centres’ legal advice to be opened to any organisation with a legal aid contract – as is the case in Scotland. These and other recommendations feature in my report, BID’s report and that of the Parliamentary Joint Committee on Human Rights: increase access to legal aid in detention and prisons; raise the standard required to hold a detention contract; urgently review the September 2018 scheme; peer review all new detention providers’ work.
No 10 believes that only the “Westminster bubble” cares about the deportations. Yet last night’s court battle proved them wrong. Cheered on by hundreds of protesters, brilliant, committed immigration lawyers worked hard to uphold their client’s rights, no matter how complex their case; fought tirelessly to ensure that everyone had access to justice, no matter who they are. Yet it is not only at the eleventh hour that immigration detainees should have access to such excellent legal representation. For there is a crisis of justice in our immigration detention centres – and it needs addressing urgently.
Jo Wilding is a barrister at Garden Court Chambers in London